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You look after children - the habitual residence test

If you're an EEA national who has come to the UK from abroad and you want to claim certain means-tested benefits, you must also satisfy the conditions of a test, known as the habitual residence test (HRT). To satisfy these conditions, you must show:

  • you have a legal right to live in the UK. This is called the right to reside, and
  • you intend to settle in the UK, Isle of Man, Channel Islands or Ireland (the 'Common Travel Area') and make it your home for the time being. This is known as habitual residence.

This page explains how you may satisfy the right to reside part of the habitual residence test if you care for a child of an EEA worker. This type of right to reside is often known as a 'derivative right to reside'. You can find out more about the derivative right to reside on the GOV.UK website at www.gov.uk. You may also want to apply for a derivative residence card which proves that you have a right to reside on this basis. You can do this through the GOV.UK website.

Getting advice

Showing your right to reside and intention to settle in the UK can be difficult. If you're unsure about anything seek the help of an adviser.

If you need more help

Immigration control

If you're subject to immigration control you can't claim benefits anyway. Making a claim may affect your right to stay in the UK. You may be subject to immigration control if you are a non-EEA national.

You are subject to immigration control if you:

  • need permission to enter or remain in the UK but don't yet have it
  • have permission to enter or remain in the UK only if you don't claim benefits or use other public services
  • were given permission to enter or remain in the UK because someone formally agreed to support you.

If you are subject to immigration control

You are the primary carer of a child in education

If you're the primary carer of the child of an EEA worker you may have a derivative right to reside in the UK. Only one parent needs to be an EEA worker. You're a primary carer if you look after the child for most of the time and the child is dependent on you for support. You must be the child's direct relative, such as their parent or grandparent, or the child's legal guardian.

However, you will only have a derivative right to reside as the primary carer of the child of an EEA worker when the child starts primary education at around age five. If the child is in nursery or pre-school you won't have the right to reside on this basis.

Your derivative right to reside will continue while the child is in education until they are 18 years old, or longer if they continue to need your care to finish their education.

You'll still have to show that you intend to settle in the UK and make it your home for the time being. This is known as habitual residence.

Conditions for qualifying for the right to reside

There are certain conditions for qualifying for the derivative right to reside. The child must:

  • be the child of an EEA worker (but not someone who is self-employed). This could be you, or your husband, wife or partner
  • have been in the UK while the EEA worker was working in the UK. However, the EEA worker does not need to have been working when the child started school or college
  • stay in the UK to finish their studies.

Example

Ana, a Romanian national, is married to Jean-Claude, a French national. They live in the UK and Jean-Claude has worked as a teacher for the last four years. The couple have a child, aged 8, who goes to the local primary school. The couple have recently separated and Jean-Claude has moved to another town. Ana looks after their child full-time. This makes her the primary carer. Because the child is the child of an EEA worker and attends school in the UK, Ana will have the right to reside in the UK so she can look after her child.

Next steps

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